HL410113RO





                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

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          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. HL410113RO
          61 HAMILTON PLACE CORP.             :  DRO DOCKET NO.FF510027R
                                                 TENANT: JOY JACKSON
                                PETITIONER    :    
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On December 22,1993, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on       
          November 19, 1993, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 61 Hamilton Place, New York, New York, apartment no. 52,   
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.  
                    
               The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2522.4 of the Rent Stabilization Code.

               The issue herein is whether the Rent Administrator's order was 
          warranted.

               The Commissioner has reviewed all of the evidence in the record 
          and has carefully considered that portion of the record relevant to 
          the issue raised by the administrative appeal.  

               This proceeding was commenced by the tenant's filing of an 
          overcharge complaint on  June 7, 1991.  The tenant stated that she 
          had taken occupancy of the subject apartment on August 1, 1990 
          pursuant to a one year lease at a monthly rental of $975.00.  The 
          tenant stated that she believed she was being overcharged because 
          the prior tenant had been paying $370.00.  

               In answer to the complaint,  the owner stated that the rent 
          being charged was based upon applicable guidelines increases, a rent 
          increase for Major Capital Improvements (MCI) and individual 
          apartment improvements at a total cost of $24,736.40.  The owner 
          submitted invoices and cancelled checks in support of its claimed 
          improvements costs.  

               In reply, the tenant disputed that the owner had made all 
          improvements at the cost alleged, specifically denying that the 
          front door or the faucet had been replaced or that new walls had 
          been installed but confirming that the owner had installed new 
          cabinets, a new stove, sink, stove hood and refrigerator.  Both the 
          tenant and the owner requested an inspection to confirm their 







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          assertions.  A physical inspection of the subject accommodations was 
          conducted by a DHCR employee on June 1,1993.

               The inspector was requested to verify the installation of 
          various items which had been included in the owner's claim,i.e. a 
          new bathroom door and lock, new dining room wood floor, ceramic 
          tiles in the kitchen, a new front door, a new bathtub, a new Delta 
          faucet and new light fixtures in the living room.  In contradiction 
          of the owner's claim, the inspector reported that the following 
          items did not appear new:  living room light fixture and the front 
          door.  Although the faucet appeared new, it was not a Delta faucet 
          as had been alleged by the owner but was manufactured by Camco.  The 
          inspector was unable to determine whether the bathroom door and lock 
          had been newly installed in 1990.  The inspector stated that only a 
          section of the dining room floor near the radiator had been replaced 
          rather than the whole floor as claimed by the owner as the floor 
          boards were of a different pattern than the original
          floor but that the bathtub appeared new.  

               In the order issued on November 19, 1993, the Rent 
          Administrator determined that the owner had proved the cost of the 
          installation of new equipment totaling $17,062.00, entitling the  
          owner to a rent increase of $426.55.  The owner's claim for a new 
          door and a new Delta faucet was disallowed as not substantiated by 
          the physical inspection.  Since the owner could not provide a cost 
          breakdown of the invoice documenting the disallowed faucet, the 
          entire invoice was disallowed.  The Administrator further noted that 
          the owner was not permitted an increase for painting the apartment.  
          The Administrator established the collectible rent at $972.92 
          effective January 1,1993 and directed the owner to refund an 
          overcharge of $15,214.54 inclusive of treble damages and excess 
          security.  

                In its appeal, the owner contends that the Administrator's 
          order should be revoked on the following grounds:  1)  even though 
          the owner did not take an increase for painting, the order claimed 
          that such cost had been included in the rent increase;  2) based 
          upon  an inspection conducted three years after the alleged 
          installation,  the Administrator incorrectly disallowed a rent 
          increase for certain improvements;  3) the owner submitted proof of 
          the installation of a new faucet which while not a Delta brand 
          faucet was a delta faucet in style;  even if the faucet were not to 
          be permitted, the remainder of the invoice should not have been 
          disallowed;  4)  the owner submitted all required documentation for 
          the rent increase taken so that  no overcharge should have been 
          found;  5)treble damages should not have been assessed because the 
          owner demonstrated that it had paid for all improvements installed 
          and had submitted full documentation for the improvements alleged 
          and that there was no willful overcharge.  

               The Commissioner is of the opinion that this petition should be 
          denied.  

               Section 2522.4 of the Rent Stabilization Code permits an owner 
          to increase the rent by 1/40th the cost of qualified improvements 
          made by the owner with the consent of the tenant.  Improvements made 
          during a vacancy period do not require tenant consent.  To overcome 
          a tenant challenge to such a vacancy increase, an owner must 


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          establish, that the claimed improvements were actually accomplished 
          at the cost on which the rent increase was based, by tenant 
          affirmation or DHCR inspection and the submission of documentation 
          (invoices and proof of payment) detailing the nature of the 
          qualifying improvement and its actual cost.  The cost of work 
          considered to be ordinary maintenance and repair does not qualify 
          for an improvement rent increase.     

               Review of the record reveals that the documentation submitted 
          in support of the claimed rent increase included invoices and 
          cancelled checks for which no cost itemization was provided, 
          including $6000.00 for a variety of floors, $5141.88 to Lorenzo 
          Sanabria Maintenance for new bathroom plumbing, new kitchen cabinets 
          new sink and Delta faucet, new gas line etc., $3255.00 for 
          installation of various electrical outlets, switches and other 
          electrical work, $7500.00 of which $500.00 was specifically denoted 
          as painting the entire apartment to renovate and restore the 
          apartment walls.  Despite the opportunity to do so, the owner did 
          not provide a breakdown so that the Administrator could sort out the 
          improvements which qualified for a rent increase from the non- 
          qualifying work.  The Commissioner notes that based on the owner's 
          failure to provide the cost breakdown, the Administrator  disallowed 
          only one invoice in total, the one containing a Delta faucet which 
          proved not to have been installed.  Although the flooring invoice 
          showed the installation of a new dining room floor, the inspection 
          report indicated that the floor was only repaired.  The 
          Administrator allowed the full amount of the invoice which included 
          the new flooring although the physical inspection indicated the 
          dining room floor was not new but that repairs had been made.  Since 
          the tenant did not file her own appeal, the Commissioner will not 
          disturb the amount approved by the Administrator for flooring.  
          Invoices that give only a total cost without any specifcation tend 
          to obfuscate and inflate the actual cost of items, while denying the 
          examiner the ability to exclude those items which do not qualify.  
          Parenthetically, it is noted that the contractor on the suspect 
          invoice, Lorenzo Sanabria, affirmed in an affirmation submitted by 
          the owner that the cost of the job that was done was only $3,141.88 
          rather than the $5,141.88 previously claimed.  The Commissioner 
          notes that the owner insisted in the record before the Administrator 
          that it had installed a Delta faucet.  The invoice unequivocally 
          referred to a Delta faucet.  That the faucet that was in place at 
          the time of the inspection was not a Delta tends to taint the 
          documents submitted by the owner, especially when the owner cannot 
          provide a breakdown of the large sums submitted.  




            
             The Administrator correctly disallowed the $500.00  cost of 
          painting,  which was included in the $7500.00 invoice, from the 
          permitted rent increase.  The Commissioner notes that the physical 
          inspection of the subject premises was conducted at the express 
          request of the parties and that the Rent Administrator can rely on 
          the inspector's findings.  

               The Commissioner finds that the imposition of treble damages 
          was warranted in the instant matter.  Included within the total 







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          amount  allegedly spent for qualified individual apartment 
          improvements were amounts that did not qualify:  $807.00, a 
          duplication of an amount that was allowed; $800.00 for floor sanding  
          and sealing, ordinary maintenance and repair; $500.00 for painting;  
          $425.00 for a door whose installation was not supported by a 
          physical inspection and $5141,88, the invoice disallowed as suspect.  
          Further, as previously pointed out, the owner was allowed a rent 
          increase for the installation of a new dining room floor which was 
          not supported by the physical inspection report.  Items consisting 
          of ordinary repairs and maintenance and items shown by inspection 
          not to have been done. as in the instant case, cannot be considered 
          the same  as improvements done in an apartment but whose cost cannot 
          be substantiated by the owner thereby eliminating treble damages on 
          any resulting overcharge.   Accordingly, the Commissioner finds that 
          the owner has not demonstrated that the overcharge was not willful 
          in this case and that the imposition of treble damages was 
          warranted.

               The owner is directed to reflect the findings and 
          determinations made in this order on all future registration 
          statements, including those for the current year if not already 
          filed, citing this order as the basis for the change.  Registration 
          statements already on file, however, should not be amended to 
          reflect the findings and determinations made in this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 
          greater than that determined by this order plus any lawful 
          increases.   

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $15,214.54.  This order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment or not in excess of 
          twentry percent per month of the overcharge may be offset against 
          any rent thereafter due the owner.  Where the tenant credits the 
          overcharge, the tenant may add to the overcharge, or where the 
          tenant files this Order as a judgment, the County Clerk may add to 
          the overcharge, interest at the rate payable on a judgment pursuant 
          to section 5004 of the Civil Practice Law and Rules from the 
          issuance date of the Rent Administrator's Order to the issuance date 
          of the Commissioner's Order.  

               THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




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